Unenforceable Gay Marriage Ban Remains in State Constitution

Gay rights advocates set sights on deleting provision from state constitution

By MATT VOLZ, Associated Press

HELENA — When the Supreme Court struck down gay marriage bans nationwide last week, it torpedoed a provision of the Montana Constitution that defined marriage as between a man and a woman.

Even though Friday’s ruling nullified the state’s ban, the language will remain in the Constitution unless a voter referendum is held to remove it. Gay-rights advocates say that is one of the issues left to work on after Friday’s court ruling, likely after pushing for a statewide non-discrimination law in the next legislative session.

“Words do matter,” said Niki Zupanic of the American Civil Liberties Union of Montana. “Even though the ban can’t be enforced any longer, keeping them on the books is sending the message that gay and lesbian citizens are second class.”

But that will be no easy task. A fight over a similar issue just ended in 2013 over deleting a state law that criminalized gay sex. The Montana Supreme Court struck down that law as unconstitutional in 1997, and it took 16 years for lawmakers to remove it from the state’s code.

“We just spent years in the Legislature, spending a lot of time to get this off the books,” said Linda Gryczan, the woman who led that lawsuit and later advocated for the law’s removal. “A lot of people spent a lot of time to make sure this was on the books. They chose to make a stand, and that’s why it became important.”

Gay rights advocates and conservative groups appear ready to dig in again if there is an attempt to remove the gay marriage ban.

“I absolutely think it should be left in,” said Montana Family Foundation president Jeff Laszloffy. “We believe the court eventually will be proved wrong and revisit the issue. It should remain there until the people choose to repeal it.”

Montana’s gay marriage ban was approved by voters in a 2004 constitutional initiative by a 2-to-1 margin. Removing it would require another constitutional initiative, which can be expensive and time-consuming to organize because it takes twice the number of voter signatures to place on the ballot compared to a statutory initiative to change state law.

Both Zupanic and Gryczan said that rather than attempting to change the Constitution immediately, they see the next priority for gay rights advocates as pushing for legislation in 2017 that would make it illegal to discriminate against gay, lesbian and transgender people.

“Because there is no statewide protection against discrimination, I would be more inclined to put our efforts there instead of something that is symbolic at this point,” Gryczan said.

Two other amendments to the Montana Constitution that were approved by voters in 2002 were struck down by a judge and remain on the books.

Those amendments would have required future ballot initiative sponsors to collect voter signatures from a certain number of counties, which can be highly populated or very sparsely populated, instead of from legislative districts, whose populations are more evenly distributed. A federal judge ruled the county distribution requirement would give too much power to the voters in small counties in violation of the U.S. Constitution’s equal power guarantees.

After the judge ruled the amendments unconstitutional, then-Attorney General Mike McGrath wrote a legal opinion that said the decision restores the original language of the Constitution, even though the nullified language remains in the document.